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Don’t Give up on Membership

Most of the ICANN community is headed to ICANN 54, the critical meeting in Dublin where some kind of an agreement on accountability reforms needs to be reached if the historic IANA transition is to take place.

Only a few months ago, an open, multi-stakeholder process proposed to enhance ICANN’s accountability by creating a very limited form of membership. It did not allow any individual in the world to become a member. It did not even allow any individual or organization with a domain name to become a member (as it should have). Instead, it created a membership composed only of ICANN’s existing Supporting Organizations and Advisory Committees (SOs and ACs). The SOs and ACs are known quantities with a long history within ICANN. Yet the prospect of endowing even this attenuated set of groups with membership powers has sparked an epic struggle between the board and the community it claims to act on behalf of. Nothing less than the future of this 18 year old experiment with multistakeholder governance is on the line.

Will the Dublin meeting be a confrontation? Or a discussion that addresses the potential problems with the CCWG’s plan but moves us forward, through incremental improvements, toward a final consensus? Unfortunately, the ICANN board has already made it into a confrontation. It completely pre-empted the public comment period by rejecting the CCWG proposals outright and coming up with a half-baked counterproposal that no one supports except the board and its apologists. Indeed, as of this writing, the CCWG has not even produced a written summary and analysis of what the general public thinks of the plan. It has been too busy analyzing ICANN’s counter-proposal and fending off lazy and often irrational arguments about the effects of membership. It’s almost as if the public comments don’t matter, at least in ICANN’s book.

All of the objections raised by the board were already considered by the CCWG in its deliberations. This is truly an attempted hijacking of the process, and one can only wonder whether the U.S. NTIA is complicit in this, or is standing on the sidelines.

The impact and implications of the board’s intervention into the process were succinctly summarized by Jordan Carter, a director of the ccTLD registry for New Zealand:

A careful multi-stakeholder process over almost a year has analyzed the community’s requirements and come up with a model that can do it—based around membership. The Board has abused its role as a decision-maker in this process. In effect, it has sought to replace the open, public, deliberative proposal development process with its own definition of what the community requires, and its own solution that can deliver its evaluation of those requirements. In doing so, it has profoundly challenged the legitimacy of the multi-stakeholder model of decision-making that ICANN and its Board claim to uphold.

It is no exaggeration to say that if the board’s intervention succeeds in driving membership off the table and replacing it with even more diluted and indirect forms of accountability that ICANN’s legitimacy as a global governance organization will be destroyed forever. No one will take it, or the multistakeholder process it claims to use, seriously any more.

Let’s face facts. ICANN accountability represents a significant power shift. Authority over DNS policy would no longer be solely in the hands of an omnipotent board with no members, no shareholders, no effective appeals mechanism, and no U.S. government oversight. ICANN’s lawyers, and its staff, and many (but not all) of its existing board members are against this power shift, naturally enough. Being accountable to someone is unpleasant and demanding. It is only natural to want to stay in control. Anyone who expected them not to oppose real reforms does not have a realistic notion of politics and governance. Power shifts never happen without a struggle.

The legal advice given to the cross community working group has made it clear, time and time again, that without legal status as members, none of the accountability mechanisms and community powers could be enforced. As Greg Shatan, one lawyer participating in the process put it, “without membership, the Board will be able to invoke fiduciary duty as a reason not to follow the decision of the community.”

By resisting membership, ICANN is resisting accountability. It’s that simple. ?

People involved in the Dublin meeting, therefore, need to understand a simple fact: they cannot back away from membership, certainly not as a first-order bargaining position. The membership model can be tweaked, improved, nibbled at around the edges, but ICANN must be required to accept the fact that it needs to have members to be accountable. Until and unless ICANN has a membership it does not have accountability, and unless ICANN has real accountability to its community, it becomes a dangerous and practically lawless global governance institution after the NTIA lets go—perhaps not as rich as FIFA, but far more important to information age public policy. The community must not back away from membership in Dublin. To give up the membership model is to give up everything the enhanced accountability process is about.

By Milton Mueller, Professor, Georgia Institute of Technology School of Public Policy

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I wonder... Andrew Gardner  –  Oct 15, 2015 7:19 AM

... how different things would be now if domain owners (the people that pay the ICANN tax) had been successful in their bid for an ICANN constituency in 1999?

15 years on, Registrants still have no real voice, and now we have this mess. Epic fail.

Don't give up on enforceable accountability... John Curran  –  Oct 15, 2015 1:35 PM

Milton -

An excellent impassioned plea for having enforceable accountability for ICANN, but I fear in seeking clarity that you might have simplified the issue to the detriment of the readers.  In particular, I agree there is a stark division between having powers that are clear and legally enforceable in court versus the Board’s accountability proposal (which is arbitration-based and does not provide for assured invocation of powers); however, there actually are two potential models which would provide the community with legally enforceable powers - the membership model and the designator model.  While membership would provide the community with legally enforceable mechanisms which have the best alignment with the desired community powers, the designator approach still clearly provides legally enforceable powers of bylaws approval and director removal.  It’s probably worth pointing this fact out to your readers, as it differs from your assertion that


of the community powers could be enforced:

The legal advice given to the cross community working group has made it clear, time and time again, that without legal status as members, none of the accountability mechanisms and community powers could be enforced.

The ability to approve changes to the bylaws and to remove directors from the Board (as offered by the designator model) is still quite powerful, although it is a matter of judgement whether these two powers alone could suffice indirectly in assuring that the Board was faithful in upholding the entire list of desired community powers.  To the extent one believes that is the case, the conclusion would be “Don’t give up on enforceable accountability” rather than simply “Don’t give up on membership” ...

John Curran
President and CEO

The Great Game continues... John Laprise  –  Oct 15, 2015 2:37 PM

Membership is essential for accountability which challenges ICANN’s administrative control over Internet parameters. ICANN is charting a very dangerous course because it does not truly believe that the NTIA would reset the IANA transition process at this point. Au contraire. The original announcement clearly stated that one condition of NTIA acceptance was the support of the multistakeholder community. Moreover, the NTIA can stand back and justifiably maintain it’s oversight donning the garb of the responsible caretaker which wants to insure the stability of the Internet. Meanwhile, ICANN may not be so fortunate as to be chosen by the NTIA to lead this process a second time. The status quo of US government oversight over the Internet is maintained, ostensibly for the most noble of reasons with the US government remaining above reproach.

What are the principles you will never give up on? Nigel Roberts  –  Oct 15, 2015 7:56 PM

“Make sure you know when you get in what are the principles you will not ever give up on, and hold them dearly, and never let them go.”—Fadi Chehade (Irish Times, 15th October 2015)

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